The Push for Platform Accountability is Going Global – Hugh Stephens

8122018

It’s no secret that the issue of internet platform accountability—holding massive internet intermediaries such as Facebook, Youtube and Google accountable for the way in which they deal (or more to the point, do not deal) with illegal content on their services– has become a hot button issue politically in many countries.

The willingness to give a free pass to these internet giants, beginning some two decades ago in order not to “stifle” innovation in the digital era, has worn thin. The old adage of “don’t blame the telephone company for obscene phone calls” doesn’t cut it anymore, especially when the platforms clearly have the ability to curate and select content to push to users according to what they think individual users prefer, to identify various attributes of content on their platforms (through mechanisms such as ContentID) and to promote or demote search results, to cite some concrete examples.

Admittedly, some of the steps taken to address the accountability issue have been more political theatre than concrete action, but perhaps the theatre is required as a first step in order to mobilize the political will necessary to move to legislation. One can think of members of the US Congress struggling to come to grips with Facebook’s business model as they questioned Mark Zuckerberg. It wasn’t one of the finest moments of Congressional hearings, but it showed the determination of US lawmakers to shine the spotlight on Facebook.

More recently, a group of lawmakers from nine countries met in the UK under the chairmanship of Damian Collins, MP, Chair of the Digital, Culture, Media and Sport Committee of the British House of Commons to issue a declaration on the “Principles of the Law Governing the Internet”.The core of this declaration is the following;

i. The internet is global and law relating to it must derive from globally agreed principles;

ii. The deliberate spreading of disinformation and division is a credible threat to the continuation and growth of democracy and a civilising global dialogue;

iii. Global technology firms must recognise their great power and demonstrate their readiness to accept their great responsibility as holders of influence;

iv. Social Media companies should be held liable if they fail to comply with a judicial, statutory or regulatory order to remove harmful and misleading content from their platforms, and should be regulated to ensure they comply with this requirement;

v. Technology companies must demonstrate their accountability to users by making themselves fully answerable to national legislatures and other organs of representative democracy.

On point v. the group had a particular gripe because they had invited Zuckerberg to appear and he pointedly did not, although a representative from Facebook did appear before the self-declared “International Grand Committee on Disinformation and ‘Fake News’”.

Was this political theatre? Yes, because it will not lead directly to any follow-up action but nonetheless it brings heightened awareness of the role played by the platforms and will increase pressure on them to take respond. Perhaps that is why the Declaration was attacked by tech apologist Mike Masnick, calling it a “useless and pompous” document.

However, it was picked up by various media including in Canada where it garnered headlines such as “Canada puts Big Tech on notice by signing Internet guidelines”. This highlighted and contrasted with testimony from representatives of Facebook and Google who told the Canadian Parliamentary Committee reviewing Canada’s Copyright Act that they preferred the status quo on copyright law and;

“pursuing structural changes to mirror the European Union’s polarizing new Copyright Directive would stifle innovation and creativity”.

It is precisely in places like the EU that concrete changes are now taking place that will transform the political rhetoric into legislative and regulatory reality. The unfounded and panicked attacks on the EU Copyright Directive’s proposed Article 13 by Youtube’s CEO Susan Wojcicki indicate that the proposed regulations must be hitting the target.

Youtube has been railing against a proposal that would do nothing more, as explained by blogger Neil Turkowitz, than require large commercial platforms who are in the business of content distribution to license the works that they are distributing, and to take steps to guard against the distribution of works for which they are not licensed. The means are readily available to do so. But Youtube has mounted a massive scare campaign against this measure which has passed the European Parliament and is proceeding to the next phase of legislative approval. As David Newhoff and Volker Rieck have pointed out, Youtube is using its own internal “trending” mechanisms that select and promote videos to users to promote videos against Article 13. Conflict of interest anyone?

Meanwhile Google is threatening to pick up its ball and go home over its opposition to the proposed new Article 11 of the EU Copyright Directive, a modification that would impose a mislabelled “link tax” or “snippet tax” on news aggregators. It is mislabeled because it is not a tax imposed by government but a charge that users and aggregators of news content (such as Google News) would be required to pay to news outlets that generate the content. It is in effect a licensing requirement for use of content.

Google doesn’t like it (Google tends to like using other people’s content for free; Google Books is a good example) and at a minimum wants a number of changes in the draft legislation, such as clearer definition of how much content constitutes a snippet. When Spain tried to introduce a similar requirement a couple of years ago, Google simply shut down its news service in Spain to starve out the news publishers. However that tactic will be more difficult to employ with an EU-wide requirement. Work on the creation of a “publishers’ right” has been underway for a while, as I reported in a blog on this issue over two years ago, and is part of a concerted strategy to throw a life-line to news publishers. By the way, non-commercial users embedding links will not be covered by the legislation.

Those aren’t the only problems facing Google. Half a world away, in Australia, the Australian Parliament has just enacted legislation that will extend its very successful site blocking legislation (a mechanism that requires Australian ISPs to disable access to offshore pirate websites after court review) to search engines, i.e. Google, despite a hyperbolic and inaccurate attack on the legislation by Cory Doctorow and the EFF. The new Copyright Amendment (Online Infringement) Bill, 2018, allows the Federal Court to require online search engine providers to block search results that refer users to online locations (i.e. offshore websites) that have been blocked pursuant to requests from rights-holders. Google opposed the legislation, arguing not on its own behalf but allegedly on behalf of its competition (competition that it has crushed, having over 95% of Australia’s search market), complaining that the law will “result in additional regulatory burden for new participants”. I am sure that new participants appreciate the support from the world’s dominant internet search service! Google also argued that the legislation was unnecessary because it already voluntarily demotes search results involving piracy (if so, why object to something that is clearly feasible and apparently common practice?). Despite objections from Google and others in the digital camp, the measure passed and is likely to be implemented before the end of the calendar year. Once in force it will be subject to a statutory review after two years.

Given Google’s track record on the Equustek case, where it fought a Canadian court order to de-index search results from a Canadian company found to be infringing the IP rights of another Canadian company, and its hardball tactics over Article 11 in Europe, it will be interesting to see what how it will respond in Australia if and when this new provision covering search engines is tested in court. Google doesn’t like being subject to legal oversight, except perhaps by the Ninth Circuit in California, but with the push to hold platforms more accountable becoming a global phenomenon, Facebook, Google, Youtube and others are going to have to get used to answering to national legislatures and national courts.

This range of activity demonstrates that lawmakers are actively pushing to hold the platforms, hitherto almost untouchable, much more accountable for the way in which they deal with content they distribute. Whether it is through holding hearings, issuing declarations of guiding principles, drafting and working through legislation or actually enacting new requirements, there is a common thread that the free ride of the platforms is over. The time has come to impose a much greater degree of accountability on the internet platforms for the content that they distribute and monetize. When that content violates privacy laws, illegally manipulates elections, promotes hate speech or terrorist activities, infringes copyright or is picked up and distributed without fair compensation to those who create it, it is time to act. It is gratifying to see the pressure being maintained world-wide.